CongressLine - Congress Struggles with Cybersmut

Carol M. Morrissey has been the
Legislative Specialist for the Washington, D. C. office of
Chicago's
Sidley & Austin for 11 years. She is a lawyer and
legislative
expert who has also authored a Congressional update column for
the
last 4 years.

The legislation of morality in
America has a long, and some would say, sordid, history. We are the
country that instituted - and then repealed - prohibition. We are the
country where some schools will not allow their students to read "Catcher
in the Rye," but your local 7-11 store sells Playboy and Hustler.
America is and has always been a country of immense contradictions -
cherishing its Rights and policing them all in the same breath. Now we
are grappling with the issue of "cybersmut," online material
that is not appropriate for viewing by minors.

It seems that the real question at
issue is whether it is possible to police the contents of the
Internet. Back in 1995, Senator Jim Exon (D-NE) stepped into the void
and introduced the Communications Decency Act or the CDA, which makes
it a felony to send "indecent" or "patently offensive"
material over the Internet or other online service if the material
will be viewed by children. The CDA became law in February as part the
larger Telecommunications Act of 1996 and has since been declared
unconstitutional by two separate courts, although the courts cannot
agree on whether it violates the First Amendment, the Fifth Amendment,
or both. (see ACLU v. Reno, E. Dist, Pa, June 11, 1996 at
http://www.eff.org/pub/Alerts/HTML/960612_aclu_v_reno_decision.html
and see Shea v. Reno at 930 F. Supp. 916.) The government has appealed
both cases and the decision to grant certiorari will be announced by
the Supreme Court after their conference on Friday (Dec. 6th) or on
the following Monday.

In the summer of 1995, Rep. Cox
(R-CA) and then Rep. Wyden (D-OR - he has since moved on to replace
retiring Sen. Packwood) introduced the Internet Freedom and Family
Empowerment Act as an alternative to the CDA (which had just passed
the Senate). As the title suggests, the bill encourages the online
industry to screen messages and to act in good faith to restrict
access to objectionable material and promotes the use and further
development of blocking software, instead of placing the onus on the
federal government to define the elusive terms associated with the
CDA. It also prohibits the FCC from regulating the economics and
content of the Internet or other interactive computer services.
Self-policing and independence from government regulation are
obviously the cornerstones of this legislative approach, which never
made it out of Committee.

The Internet Freedom and Child
Protection Act of 1996, which was offered by Rep. Lofgren (D-CA) in
June of this year, effectively repeals the provisions of the CDA which
are under constitutional fire. Internet access providers would be
required to offer their users (gratis or for a fee) blocking software.
Minimum standards for blocking (or screening) software would be
established by the FCC. Although her legislation gives the government
jurisdiction over blocking software standards, the ultimate
responsibility to monitor content is being placed on the user (the
family).

Another related issue that has come
under Congressional scrutiny is Internet gambling. Americans gambled
over $500 billion last year alone - as anyone can see, there is an
incredible market out there for wagering. In addition to concerns over
the legality of Internet gambling companies and the potential for
consumer fraud, there is the worry that online gambling would
virtually trap compulsive gamblers.

Sen. Kyl (R-AZ) and then Rep.Johnson
(D-SD) - he is now a member of the Senate, both introduced measures
regulating Internet gambling. Sen. Kyl would have explicitly banned
online gambling, while Rep. Johnson sought to clarify existing law.
Sen. Kyl intends to pursue this issue next year with the support of
the National Association of Attorneys General, a powerful presence.
Congress also established a "National Gambling Impact Study
Commission" which will be investigating online wagering as part
of its mandate and may lead to legislation.

We now await the Supreme Court's
decision to review the constitutionality of the CDA. It has never been
an easy issue and has plagued the Court in many guises over the years.
As Justice Potter Stewart once remarked, he could not define
obscenity, but "I know it when I see it." Where that leaves
us, now that online technology is blurring already fuzzy lines, its
difficult to say.

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